New challenge to Texas voting laws

Posted Fri, August 23rd, 2013 3:13 pm by Lyle Denniston

New pressure in court to compel the state of Texas to get advance approval before it can enforce any voting laws, including its two-year-old voter ID law, will now be applied in an existing lawsuit in federal court in Corpus Christi. That lawsuit is unfolding before the same judge who was assigned on Thursday to handle the Obama administration’s new challenge to that law and to Texas’s desire to avoid direct court supervision of its election system.

The new developments illustrate the spreading attempt to limit the impact on the rights of minority voters and candidates of the Supreme Court’s June 25 decision in Shelby County v. Holder, which ended the requirement that Texas and eight other states with a history of race bias in voting obtain federal approval for any changes in their voting laws or procedures.

One day after the Shelby County decision, Democratic Rep. Marc Veasey of Fort Worth, an African American, and a group of minority voters, local officials, and political candidates sued the state over the voter ID law. Their lawsuit contended that the law “is one of the most stringent, if not most stringent, in the country.”

On Thursday, within hours after the Justice Department filed its own lawsuit against that law, in the same federal district court in south Texas, attorneys for the congressman and the others filed an amended version of that lawsuit. It added new constitutional claims, new challengers — Dallas County and a Hispanic civil rights group — and asked that U.S. District Judge Nelva Gonzales Ramos order Texas to get “preclearance” for changes it wanted to make in election laws or regulations.

In their initial filing two month ago, the challengers had asked for a ruling that the voter ID law — known as “SB 14” (for Senate Bill) — violated Section 2 of the Voting Rights Act of 1965 and the voting rights protections of the Fourteenth and Fifteenth Amendments. They also sought an order blocking enforcement of the law. They did not include a plea to put Texas under the preclearance regime of the 1965 law’s Section 3 — a provision left intact by the Supreme Court’s ruling.

The new version added a preclearance request, along with new claims of violations of the equal protection guarantees of the Fourteenth Amendment, the free-speech guarantees of the First Amendment, and — because of the cost of obtaining an ID that would satisfy the law — the Twenty-Fourth Amendment’s ban on a poll tax.

The state of Texas, the lawsuit contended, “has a long, notorious history of disfranchising voters by various methods and discriminating against classes of voters, especially on account of race and ethnicity. Senate Bill 14 of 2011 is another effort to achieve those unlawful ends.”

Texas, it added, “will continue to discriminate” unless it is put under an order to get clearance either from the district court in Corpus Christi or from the U.S. attorney general for any changes in voting laws or methods.

The Justice Department made the same plea under the 1965 law’s Section 3 in its lawsuit. Late Thursday, the Justice Department case was added to Judge Gonzales Ramos’s docket.

Texas officials have not yet filed answers to either of the lawsuits against its voter ID law, but top officials have issued public statements condemning the new challenges as interferences with Texas’s power to conduct its own elections as a sovereign state.

A Section 3 preclearance claim has been made in two other federal courts involving Texas voting laws — in a federal district court in San Antonio and in one in Washington, D.C. One uncertain question hanging over these multiplying claims is how different federal courts would sort out who supervised Texas, if more than one of them imposed a preclearance mandate and if they did so for different periods of time.

Because the Section 3 preclearance requirement has been seldom used, the courts have not developed a significant body of law to sort out how it actually is to work. Ultimately, that broad question probably will go to the Supreme Court for final resolution.

Prior to the Shelby County decision, preclearance requirements for states with a past history of discrimination in elections were imposed under Section 5 of the 1965 law. That provision, somewhat different in detail from the Section 3 preclearance regime now being sought, was made unenforceable by the Supreme Court when it struck down the coverage formula that put state and local governments under Section 5.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.